Judge Curtis A. Kin, Case Number: 22STCP03767, Date: 2023-10-03 Tentative Ruling

Petitioner Michael McMahon petitions for a writ of mandate directing respondent City of Los Angeles and Michel Moore to set aside the termination of petitioner and restore him to his prior position of Police Officer II with back pay.

Petitioner Michael McMahon was employed by the Los Angeles Police Department (“Department”) at the rank of Police Officer II. (AR 1, 4.)

On August 18, 2021, the Los Angeles City Council adopted Ordinance No. 187134 (“Ordinance”). (AR 1239-44.) The Ordinance required City employees to be fully vaccinated for COVID-19, or to have requested an exemption, and to have reported their vaccination status no later than October 19, 2021. (AR 1240; Los Angeles Administrative Code [“LAAC”] 4.701(a).) Commencing October 20, 2021, compliance with the COVID-19 vaccination and reporting requirements was a condition of employment. (AR 1240; LAAC § 4.701(b).)

The Ordinance allowed employees to seek a medical or religious exemption from vaccination. (AR 1240-41; LAAC § 4.702.) Employees who obtain an exemption and are required to report to a City worksite were required to submit to weekly COVID testing at no cost to the employee. (AR 1241; LAAC § 4.702(b).) Employees who were approved for an exemption were still required to report their vaccination status. (AR 1240; LAAC § 4.701(b).)

On October 14, 2021, the City issued its “Last, Best, and Final Offer Over Outcomes for Non-Reporting and Non-Compliance” (“LBFO”). (AR 1252-56.) Under the LBFO, employees who had not submitted proof of full vaccination status or a request for exemption by October 20, 2021 would be issued a Notice of Mandatory COVID-19 Vaccination Policy Requirements (“Notice”). (AR 1253.) Employees who received the Notice were required to sign it and comply with the terms therein as a condition of employment. (AR 1253.) The terms included testing for COVID-19 twice a week with the City or a vendor chosen by the City and deduction of the cost of the testing from the employee’s paycheck. (AR 1253-54.) Employees who did not show proof of full compliance by December 18, 2021 would be subject to corrective action. (AR 1254.)

On October 26, 2021, the City Council adopted “Resolution Implementing Consequences for Non-Compliance with the Requirements of Ordinance No. 187134” (“Resolution”). (AR 1245.) The Resolution implemented the LBFO. (AR 1245.)

On October 28, 2021, the Mayor issued a memorandum ordering all department heads to immediately implement the LBFO and to issue to each employee who is unvaccinated and has not requested an exemption a Notice of Mandatory COVID-19 Vaccination Policy Requirements (“Notice”). (AR 1245-46.) Upon receiving the Notice, the employee would have 24-48 hours to review and sign it. (AR 1246.) If an employee who had not filed an exemption form refused to sign the Notice, the employee would be placed off duty without pay pending service of a “Skelly package.”[1] (AR 1246.) The Mayor’s memorandum also provided that sworn employees would be subject to applicable “Board of Rights proceedings.” (AR 1246.)

On November 3, 2021, Captain Japhet Hom served the Notice on petitioner. (AR 194, 1260.) Among other things, the Notice stated: “To maximize compliance with the Ordinance, the Cit is affording a final opportunity for current City employees to become fully vaccinated by December 18, 2021….” (AR 1257.) To take advantage of that option, the Notice explained petitioner was required to agree to be fully vaccinated by December 18, 2021 and test twice a week at his cost. (AR 1257.) The Notice, which required petitioner’s signature as acknowledgement also stated: “I understand that my failure to sign, or if I disagree to any part of this Notice, will cause me to be placed off duty without pay, pending pre-separation due process procedures and I will be provided written notice of the proposed action of separation, or similar action shall be taken as applicable for sworn employees as provided above.” (AR 1258.) In response to the Notice being presented to him, petitioner told Captain Hom that he had no intention of signing the Notice, getting vaccinated, or filing for an exemption. (AR 202.)

On November 5, 2021, petitioner told Captain Elaine Morales that he was refusing to sign the Notice. (AR 606-07, 832.) Petitioner wrote on the Notice, “I am declining to acquiesce to these mandates.” (AR 832, 1260.)

On November 9, 2021, the Department served a Complaint Adjudication Form on petitioner. (AR 1550-51.) Captain Elaine Morales told petitioner that he was being disciplined for not signing the Notice. (AR 206.) Petitioner was notified that he had until December 9, 2021 to respond orally or in writing. (AR 1551.) Petitioner initialed the box indicating that he intended to submit a response. (AR 1551.) The form indicated that petitioner’s response, known as a Skelly response (AR 253), “will be reviewed by the Chief of Police for evaluation prior to adjudication of this matter.” (AR 1151.)

Captain Morales also provided petitioner with a Skelly package. (AR 730, 813-14.) According to Captain Morales, a Skelly package “is when you bring an employee into the office, saying that this is the allegation or the information. And they have an opportunity, for 30 days, to write a Skelly based on what they feel, why they’re deciding their decision. And they present that. We read it, and then it continues on with the investigation.” (AR 814.) No interviews, including of petitioner, were included in the Skelly package. (AR 730.)

On November 10, 2021, the Chief of Police signed a “Complaint and Relief from Duty, Proposed Removal, Suspension, or Demotion” (“Complaint”). (AR 4.) Petitioner was charged with one count as follows: “On or about November 4, 2021, you, while on-duty, failed to sign and/or comply with the requirements of the Notice of Mandatory COVID-19 Vaccination Policy Requirements, a condition of employment.” (AR 4.) Petitioner was temporarily relieved from duty effective November 16, 2021. (AR 4.) Petitioner was directed to a Board of Rights (“Board”) “with the proposed penalty of removal.” (AR 4.) Captain Hom personally served petitioner with the Complaint on November 15, 2021. (AR 4, 251.)

On December 6, 2021, the Board began hearing evidence. (AR 15.) At the beginning of the hearing, the count from the Complaint was read. (AR 15.)

Petitioner testified that, when Captain Hom presented him with the Notice, petitioner had concerns about his medical information privacy. (AR 580, 583.) Petitioner also found the awarding of the testing contract to Bluestone without a bidding process to be unethical. (AR 582-83.) Petitioner was also concerned about the obligation for employees to pay for testing. (AR 581.) Petitioner stated that he refused to be vaccinated on the ground that the COVID-19 vaccines were experimental, do not “protect against anything,” and have side effects, including death. (AR 713-14.) Petitioner testified that he was standing up for his deeply held convictions. (AR 714.)

After the hearing, the Board found petitioner guilty of the one count in the Complaint. (AR 1230.) The Board concluded that petitioner was ordered to sign the Notice and refused to comply. (AR 1230.) One of the Board members stated, “Ordinance 187134 is the law. The result in policy is an obligation by the LAPD to enforce the law. Policy exists for a reason. Department policy is the culmination of decades of reasoned reflection on how best to balance law enforcement power with constitutional restraints. A law enforcement officer that willfully fails to follow Department policy is acting illegally.” (AR 1235.)

The Board recommended that petitioner be removed from the Department. (AR 1234.) Petitioner was removed from his position effective December 16, 2021. (AR 1716.)

On October 17, 2022, petitioner filed a Verified Petition for Peremptory Writ of Mandate. On August 4, 2023, petitioner filed an opening brief. On September 1, 2023, respondents filed an opposition. On September 18, 2023, petitioner filed a reply.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because the termination of petitioner from his position as Police Officer II concerns a fundamental vested right, the Court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“On questions of law arising in mandate proceedings, [the Court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 71.)

Respondents’ objection to Exhibit C (transcript of an interview with respondent Michel Moore) attached to petitioner’s declaration is SUSTAINED as irrelevant. The interview is not part of the administrative record. In general, “a hearing on a writ of administrative mandamus is conducted solely on the record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) Extra-record evidence may be admitted only if, in the exercise of reasonable diligence, the relevant evidence could not have been produced or was improperly excluded at the hearing. (CCP § 1094.5(e).) The requirements to submit extra-record evidence are “stringent.” (Pomona Valley Hosp. Med. Ctr. v. Superior Court (1997) 55 Cal.App.4th 93, 102.) “If the moving party fails to make the required showing, it is an abuse of the court's discretion to … [augment the record].” (Ibid.) Petitioner has not moved to augment the record pursuant to CCP § 1094.5(e). Accordingly, the Court will not consider any evidence that is not part of the administrative record in this case.

Petitioner’s request to take judicial notice of Exhibit A (Statement of Decision in Los Angeles Police Protective League v. City of Los Angeles et al., LASC Case No. 21STCV39987) is GRANTED, pursuant to Evidence Code § 452(d). Respondents’ evidentiary objection is OVERRULED. Although the statement of decision is not a final judgment, it is relevant to demonstrate that litigation concerning whether Labor Code § 2802 prohibited the City from requiring its employees to pay for testing was pending while petitioner’s Board of Rights was taking place. (AR 382-83 [Board member acknowledging existence of litigation], 581 [petitioner viewed deductions from paycheck for testing as illegal], 1712-13 [Board noted that litigation that could invalidate Ordinance or related policy was not at issue].) However, the Court notes that “a written trial court ruling has no precedential value.” (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.)

Petitioner’s request to take judicial notice of Exhibit B (Resolution Discontinuing COVID-19 Surveillance Testing Requirements Implemented Pursuant to Ordinance No. 187134) is DENIED. Respondents’ evidentiary objection to Exhibit B is SUSTAINED. While Evidence Code § 452(b) provides for the taking of judicial notice of regulations and legislative enactments, Exhibit B is only a motion to adopt a resolution stopping mandatory testing requirements for unvaccinated employees. There is no showing that the resolution was adopted. Even if, as asserted by petitioner, respondents argued in some other case that the testing requirements were discontinued, petitioner does not show that the doctrine of judicial estoppel should apply in this case. Petitioner fails to show that respondents were “successful” in asserting the discontinuation of mandatory testing. (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183 [elements of judicial estoppel].)

Petitioner maintains that, instead of being provided with the pre-discipline removal procedures mandated by Skelly v. State Personnel Board (1975) 15 Cal.3d 194, he was directed to a Board of Rights Hearing. (AR 4.) Respondents maintain that any Skelly violation was harmless error because petitioner participated in a Board of Rights hearing challenging the disciplinary action.

Section 1070(b) of the City Charter allows the Chief of Police to “temporarily relieve from duty any member pending a hearing before and decision by a Board of Rights on any charge or charges pending against the member” “[a]fter following predisciplinary procedures otherwise required by law.” (City Charter § 1070(b).) Mandatory pre-removal safeguards for a permanent civil service employee include “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Skelly, 15 Cal.3d at 215.)

The parties do not dispute that petitioner was provided with a Skelly package with information about the allegations against him. (AR 730, 813-14.) The Complaint Adjudication Form, served on petitioner on November 9, 2021, provided petitioner until December 9, 2021 to respond to the allegations. (AR 1550-51.) However, the next day, on November 10, 2021, Chief Moore signed a Complaint temporarily relieving petitioner from duty as of November 16, 2021. (AR 4.) The Complaint was personally served on petitioner on November 15, 2021. (AR 4.) The Board of Rights did not start until November 18, 2021. (AR 5-13 [scheduling conference], 15 [hearing evidence started on 12/6/21].) The Board of Rights concluded on July 1, 2022, with petitioner being found guilty of the sole count on the Complaint. (AR 1230, 1716.)

Based on the foregoing, petitioner was removed from his position on November 16, 2021 prior to the expiration of time to respond to the Skelly package. Petitioner indicated that he intended to respond to the allegations against him. (AR 1551.) Instead, petitioner was directed to a Board of Rights, which a Board member admitted was not a Skelly proceeding. (AR 94, 97.) While City Charter § 1070(b) allowed Chief Moore to temporarily relieve petitioner from duty, Skelly required petitioner to be given the right to respond prior to being temporarily relieved from duty. Petitioner was not afforded such right.

Respondents argue that petitioner was afforded a full evidentiary hearing at the Board of Rights. “[D]epartures from an organization’s procedural rules will be disregarded unless they have produced some injustice.” (El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 990.) While petitioner was ultimately able to defend himself, however, the post-removal Board of Rights is insufficient to remedy the pre-removal constitutional violation. (See Skelly, 15 Cal.3d at 215 [listing procedural rights required to satisfy due process clauses of state and federal constitutions].) “[P]ost-removal safeguards do nothing to protect the employee who is wrongfully disciplined against the temporary deprivation of property to which he is subjected pending a hearing.” (Ibid.) Pre-removal procedural protections “minimize the risk of error in the initial removal decision.” (Ibid., quoting Arnett v. Kennedy (1974), 416 U.S. 134, 170.)

The appropriate remedy here for the Skelly violation is an award of back pay for the time period when petitioner was wrongfully placed off-duty without pay. (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 402.) “[D]amages consist only of back pay for the period discipline was improperly imposed, i.e., from the date of actual discipline to the time discipline was validated by the hearing.” (Ibid.) Accordingly, petitioner is entitled to back pay from December 16, 2021 (when his loss of pay became effective) to July 1, 2022 (when the Board terminated petitioner). (AR 1716.)

Petitioner also seeks reinstatement of his position. In the opening brief, petitioner argued that the penalty of removal was excessive because no harm to the public service would result from reinstatement. (OB at 15:17-25.)

However, in the reply, petitioner argues that termination is not warranted due to the due process violation. (Reply at 9:17-19.) While reinstatement may be an available remedy for a due process violation (Skelly, 15 Cal.3d at 219 [ordering trial court to reconsider petitioner’s dismissal, which violated due process and which was disproportionate to misconduct]), the Court finds that back pay fully compensates petitioner. It is undisputed that petitioner was afforded a full Board of Rights hearing during which he was represented by counsel and had the opportunity to present evidence and persuade the Board why he should not be terminated.

In the reply, petitioner raised for the first time that the penalty of removal was excessive because he was required to sign a Notice containing a purportedly illegal requirement to pay for COVID-19 testing. (Reply at 9:20-24.) Although petitioner noted in the opening brief that he argued to the Board of Rights that requiring him to pay for testing violated Labor Code § 2802 (OB at 5:17-20), petitioner did not actually argue in his initial briefing that illegality of the Notice was a reason why the penalty imposed on him was excessive.

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.) Under CCP § 1094.5, the Court may find an abuse of discretion has been established “if the respondent has not proceeded in the manner required by law.” (CCP § 1094.5(b).)

Here, petitioner was charged with not signing the Notice and was found guilty by the Board for not signing the notice. (AR 4, 1230, 1716.) Because respondents were not notified that the purported illegality of the Notice was a basis for petitioner’s argument that removal from his position was an abuse of discretion, the Court will allow respondents to serve a sur-reply (5 pages maximum) that responds to the following: Is a requirement for employees to pay for testing – as set forth in the Notice of Mandatory COVID-19 Vaccination Policy Requirements served on petitioner on November 3, 2021 – illegal under Labor Code § 2802? If so, was petitioner entitled to refuse to sign the Notice and not be removed from his position of employment for his refusal to sign the Notice? (See D'sa v. Playhut, Inc. (2000) 85 Cal.App.4th 927, 929 [continued employment could not be conditioned on signing of employment agreement containing unenforceable covenant not to compete].)

With respect to petitioner’s briefing, the issue of whether the City has discontinued mandatory testing for unvaccinated employees may be relevant to whether the testing required under the Notice violated Labor Code § 2802. As discussed above, petitioner fails to show that the City Council adopted the proposed resolution attached to his request for judicial notice as Exhibit B. Petitioner may serve a supplemental request for judicial notice to attempt to establish the resolution discontinuing the mandatory testing was adopted.

The requested Supplemental filings shall be filed and served by no later than _______________, with courtesy copies delivered to Department 82.

Pending the supplemental briefing ordered above, the petition is CONTINUED to ________________ at ________ in Department 82.

[1] As discussed below, Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215 provides that, before discipline becomes effective, an employee must be accorded certain procedural rights, which include at a minimum “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.”